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Digital Companies Seek Delicate Balance On Government Data Requests

Yahoo Win Could Shed Light on PRISM Data-Gate Scandal

Yahoo, Google and Microsoft are on a crusade to ensure the public knows they don't succumb to every demand from the government for consumer data. In the wake of the National Security Administration's PRISM program scandal, they've each formally petitioned for the ability to reveal more information about government data requests.

Yahoo seems furthest ahead in this pursuit. The company has been granted the ability to reveal the opinion of a ruling from its unsuccessful 2008 challenge to the constitutionality of a Foreign Intelligence Surveillance Court order to provide data on Yahoo users. It's the latest wrinkle in the ongoing data-gate saga prompted by exposure of the PRISM program, which has the world's largest digital advertising and media corporations squirming.

Though much of the process remains obscured, the Federal government is evaluating whether to grant Yahoo a motion to disclose all or parts of the opinion on the constitutionality case ruling. It was only recently that Yahoo was able to disclose the fact that it filed the suit at all. The decision to unveil FISA court opinion information is an unusual one, said a source close to the Yahoo case who asked to remain anonymous.

When whistleblower and former NSA contractor Edward Snowden exposed the agency's surveillance program and its reliance on data from companies including Verizon, Apple, Google, Yahoo, Microsoft and Facebook, the firms went on the defensive. Though it's unclear there's been any significant damage to any of their brands, some have publicly stressed their commitments to protecting consumer data privacy.

"From a reputation standpoint, if I were advising them, I would be advising them to do what they're doing which is to follow the sanctioned process," said Rick Kelly, director of crisis communications at Triad Strategies, a governmental affairs and strategic communications firm. "They need to abide by whatever the court's decision is rather than to go rogue on this issue."

However, the firms can't risk looking soft on terrorism, either, he said. "They need to avoid the appearance that what they're doing is at the expense of national security also…. At some point national security and the right to privacy become mutually exclusive."

Most likely the Department of Justice, possibly along with the Office of National Intelligence and the NSA will be involved in determining how much of the opinion to reveal, said Mark Rumold, a staff attorney at the Electronic Frontier Foundation, a digital privacy group. The EFF today filed suit against the NSA in conjunction with 19 other groups arguing that the NSA's collection of call records violated their First Amendment right of association.

Both Google and Microsoft have filed their own petitions with the FISA court. Those two firms are fighting for the ability to disclose aggregate numbers of NSA requests for data. The idea is to show people that the companies don't always comply with such requests and respect their users' privacy.

"Google's numbers would clearly show that our compliance with these requests falls far short of the claims being made. Google has nothing to hide," wrote the digital data-devouring firm's Chief Legal Officer David Drummond in a June missive sent to the offices of the Attorney General and the Federal Bureau of Investigation.

Google said it has no updates on the status of its request, according to a company spokesperson.

Facebook publicly has expressed similar interest in being granted the ability to disclose more about government data requests. However, it has yet to file a formal petition with a FISA court, according to a Facebook spokesperson.

"There's no question that these disclosures have raised a lot of questions for users in terms of how transparent and how honest these companies have been about requests for user data," said Mr. Rumold. "Their business models largely rely on having access to lots of information… While it makes them great tools for advertising, it also makes them great tools for foreign intelligence collection."

Potential damage to the reputations of these large digital data reapers could influence their steady pushback against government requests, at least publicly. Their petitions asking for the ability to reveal more about NSA requests is "at least an indicator that they're not happy…with the way their role in the NSA's spying program has been portrayed," suggested Mr. Rumold.

"We'd like the companies to join us in advocating for reform of the spying laws that give the government purported authority to do this type of surveillance," he continued.